27 Mo.App. 487 (Mo.App. 1887)
MARTIN MORAN, Respondent,
SAMUEL S. BROWN, Appellant.
Court of Appeals of Missouri, St. Louis.
October 25, 1887
APPEAL from the St. Louis Circuit Court, Daniel DILLON, Judge.
H. A. CLOVER, for the appellant:
The servant takes the risk of the negligence, recklessness, or misconduct of his fellow-servant, the use of the material and implements furnished, and their failure from latent defects not revealed by practical tests, and from deterioration by the usual wear and tear. Laning v. Railroad, 49 N.Y. 521; 2 Thompson on Negligence, 940; Warner v. Railroad, 39 N.Y. 469. Where the plaintiff's evidence is equally consistent with the absence as with the existence of negligence in the defendant, the court will not be justified in leaving the case to the jury. Cotton v. Wood, 8 C. B. (N. S.) 568; Allen v. New Gas Co., 1 Exch. Div. 254; Bartonshill Coal Co. v. Reid, 4 Jur. (N. S.) 767; Lovegrove v. Railroad, 16 C. B. (N. S.) 692; s. c. 33 L. J. C. P. 329; Feltham v. England, L. R. 2 Q. B. 33.
A. R. TAYLOR, for the respondent:
It is the duty of the master to inspect the implement from time to time to ascertain its condition of repair, and, although the servant may have equal means of discovering a defect as the master, yet if he does not so discover the defect, and the master could do so by the exercise of ordinary care, the injured servant has redress. Dedrick v. Railroad, 21 Mo.App. 436; Porter v. Railroad, 71 Mo. 79; s. c. 60 Mo. 162, followed and approved in Waldhier v. Railroad, 87 Mo. 48. The inquiry in all such cases is, was the servant seeking to serve his master, to carry out his purpose? If he was, the master is responsible not only for his negligent acts, but even for his wanton act to accomplish his master's purpose in an unlawful manner. Howe v. Newark, 12 Allen 49; Garretzen v. Duenckel, 50 Mo. 104; Schmidt v. Adams, 18 Mo.App. 435 But suppose it be urged, as it is in the appellant's brief, that the servant was negligent in the use of the axe, and that such negligent use of the axe contributed to cause the injury, yet this state of facts does not defeat the plaintiff's recovery, for it is well settled that, if the master's negligence and a fellow-servant's negligence jointly cause the injury to the servant, the master is liable. McMahan v. Henning, 3 F. 353, and cases cited.